How Lawsuits Against Spammers Can Aid Spam-Filtering Technology: A Spam Litigator’s View From the Front Lines Jon Pra

1. How Lawsuits Against Spammers Can Aid Spam-Filtering Technology: A Spam Litigator’s View From the Front Lines Jon Praed Internet Law Group JonPraed@aol.com

2. What is Spam?

3. Spam is Unsolicited Bulk Commercial Email

4. Spam is Unsolicited Bulk Commercial Email • “bulk” – substantially similar emails • “commercial” – not inherently illegal • “email” – challenges for convergence • “unsolicited” – KEY – Intent of Recipient

5. Recipient’s Intent Can Be Reflected in 3 Sources: • Text of Email – difficult to distinguish spam from opt-in advertisements; impossible to prevent spammer from reacting to filters* • Input from Recipient – difficult to obtain • Input from Sender – compelling when you can get it (spammers rarely have any evidence of recipient’s intent) * Effectiveness of filters should be measured by their resistance to evasion

6. Laws Against Spam • AUPs – Setting expectations • Common Law – trespass to chattels • State Statutes (i.e., Virginia Computer Crimes Act; Washington anti-spam laws) • Federal Statutes (i.e., Computer Fraud & Abuse Act -- general computer crimes statute) • Pending Federal Legislation – silver bullets?

7. Law’s Objectives • Injunctions • Damages • Bankruptcy • Imprisonment • General & Specific Deterrence • Retribution • Education

8. Profile of a Spammer • Hackers Gone Bad or Crooks Turned Geek • Never Been So Successful In Any Other Job • Big Spenders • But Increasingly Professional

9. How Spammers Mail • Spam Houses – increasingly offshore • Dial up accounts – compromised, free or anonymously registered • Bulk Email Software* • IP spoofing? * Look for more legal attention and research on bulk email software

10. What Spammers Advertise • Point of Sale via Online Payment • Lead Generation • Rarely Advertise Non-Internet Sites (phone numbers, PO boxes) • Almost Never Advertise Brand Awareness

11. Where Spammers Advertise • HyperText Links – temporary sites linked to permanent sites (www.freewebspace.com/mypage.htm linking to www.dirtygirls.com) • Encrypted webpages/ Obfuscated URLs • Redirecting webpages • Temporary Connectivity is the Norm

12. Spam = Fraud • Source and links are transient and falsified • Domain name registrations – is every adult website offshore? (False info can lead to ICANN action (9/02 Verisign)) • Webhosting – Spam Houses $10,000/month • Third Party Advertisers – In Search of Plausible Deniability

13. War Stories • Contempt is Real -- AOL v. CN Productions • Breaking the Webmaster Model -- AOL v. Cyber Entertainment Network • You Can Sue Where the Spam Lands and Notice Will Be Presumed -- Verizon Online v. Ralsky • Other cases: AOL v. Forrest Dayton, AOL v. Joseph Melle

14. Federal Legislation • Shift Legal Burden to Sender to Produce Evidence of Intent – Presumption of Spam • Sunshine via “custodian of records” disclosures (with Criminal Enforcement for False Disclosures) (18 USC 2257) • Sliding Statutory Damages (based on presence of disclosure, evidence of intent and other forms of fraud) • Government & ISP Enforcement

15. Limits of the Law • Dependence on technical information • Slow and Costly • Growing International Scope

16. How Lawsuits Against Spammers Can Aid Spam-Filtering Technology: A Spam Litigator’s View From the Front Lines Jon Praed Internet Law Group JonPraed@aol.com